TortsProf Blog

JOTWELL Torts: Avraham on Adar & Perry on Negligence

At JOTWELL, Ronen Avraham reviews Yehuda Adar & Ronen Perry's Negligence Without Harm.

Morgan: Great Debates in Tort Law

Jonathan Morgan has published Great Debates in Tort Law with Hart Publishing.  The blurb provides:

Exploring the key discussions and arguments in tort law, this book enables students to get a deeper and more rounded understanding of the subject.

Part of the Great Debates series, it is an engaging introduction to the more advanced legal concepts, such as negligent breach of duty and vicarious liability. Each chapter is structured around questions and debates that provoke deeper thought. It features summaries of the views of notable experts on key topics and each chapter ends with a list of further reading.

This book is ideal for use by ambitious students alongside a main course textbook, encouraging them to think critically, analyse the topic and gain new insights. The development of these skills and the discursive nature of the series, with an emphasis on contentious topics, means the book is also useful for students when preparing their dissertations. Suitable for use on courses at all levels, this book helps students to excel in coursework and exams.

Giliker: Vicarious Liability in the Common Law World

Paula Giliker has published Vicarious Liabilty in the Common Law World with Hart Publishing.  The blurb provides:

This book is the one place to find unprecedented access to case-law, doctrinal debates and comparative reflections on vicarious liability from across the common law world. The doctrine of vicarious liability, that is strict liability for the torts of others, represents one of the most controversial areas of tort law. Unsurprisingly it is a doctrine that has been discussed in the highest courts of common law jurisdictions. This collection responds to uncertainties as to the operation of vicarious liability in twenty-first century tort law by looking at key common law jurisdictions and asking expert scholars to set out and critically analyse the law, identifying factors influencing change and the extent to which case-law from other common law jurisdictions has been influential. The jurisdictions covered include Canada, England and Wales, Australia, Singapore, Ireland, Hong Kong and New Zealand.

In providing critical analysis of this important topic, it will be essential and compelling reading for all scholars of tort law and practitioners working in this field.

Discount Price: £68 / $92

Order online at www.bloomsbury.com  – use the code GLR AP3UK for UK orders and GLR AP3US for US orders to get 20% off!

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Crootof on Implementing War Torts

Rebecca Crootof has posted to SSRN Implementing War Torts.  The abstract provides:

Under the law of armed conflict, no entity is accountable for lawful acts in war that cause harm, and accountability mechanisms for unlawful acts (like war crimes) rarely create a right to compensation for victims. Accordingly, states now regularly create bespoke institutions, like the proposed International Claims Commission for Ukraine, to resolve mass claims associated with international crises. While helpful for specific and politically popular populations, these one-off institutions have limited jurisdiction and thus limited effect. Creating an international “war torts” regime—which would establish route to compensation for civilians harmed in armed conflict—would better address this accountability gap for all wartime victims.

This Article is the first attempt to map out the questions and considerations that must be navigated to construct a war torts regime. With the overarching aim of increasing the likelihood of victim compensation, it considers (1) the respective benefits of international tribunals, claims commissions, victims’ funds, domestic courts, and hybrid systems as institutional homes; (2) appropriate claimants and defendants; and (3) the elements of a war torts claim, including the necessary level and type of harm, the preferable liability and causation standards, possible substantive and procedural affirmative defenses, and potential remedies.

Domestic law has long recognized that justice often requires a tort remedy as well as criminal liability; it is past time for international law to do so as well. By describing how to begin implementing a new war torts regime to complement the law of state responsibility and international criminal law, this Article provides a blueprint for building a comprehensive accountability legal regime for all civilian harms in armed conflict.

Torts at the AALS Annual Meeting in San Diego

At the AALS Annual Meeting, the Torts & Compensation Systems Section has two events on Thursday, January 5th.  From noon until 1:00 is the awards ceremony at which the Prosser Award is bestowed upon John Goldberg and Ben Zipursky.  From 3:00 until 4:40 is the Section meeting.  The panel is entitled "Opioid Litigation:  The Good, the Bad, and the Ugly."  Speakers include Elizabeth Cabraser, Nora Engstrom, Charles Lifland, Linda Mullenix, Jennifer Oliva, and Lindsey Simon.  Tim Lytton will serve as moderator.  The blurb provides:

The nationwide wave of lawsuits against opioid manufacturers, distributors, and retailers is, arguably, the most significant litigation phenomenon of the 21st century. Opioid litigation includes many features that are now familiar to observers of mass torts: multi-district class-action litigation, government-entity plaintiffs, corporate bankruptcy, and eye-popping settlements. This session will offer a brief analysis of the current state of opioid litigation. Panelists and session attendees will then share their views on the success of this litigation as a response to the opioid crisis and discuss general lessons to be learned for the future.

Today is the last day for early-bird registration.

Heled, Levin, Lytton, & Vertinsky on a Statutory Tort Solution to the Reproductive Wrong of Misrepresentation

Yaniv Heled, Hillel Levin, Tim Lytton & Liza Vertinsky have posted to SSRN Righting a Reproductive Wrong:  A Statutory Tort Solution to Misrepresentation by Reproductive Tissue Providers.  The abstract provides:

Fraud, misrepresentation, and other unfair trade practices plague the market for human reproductive tissue. The sale of sperm, eggs, and embryos is virtually unregulated in almost all states, and courts have been inhospitable to victims. As a result, children are born with genetic disorders that impose extreme financial and personal hardship. Proposals for direct government oversight have, for the most part, failed to gain traction, and litigation has yielded inadequate remedies.

This Article assesses these problems and proposes model legislation that would eliminate doctrinal obstacles to holding unscrupulous reproductive tissue providers liable. By making it easier for parents to bring tort claims, we aim to jump-start more effective government oversight and industry self-regulation. The proposed legislation is also responsive to political dynamics surrounding the abortion debate and, thus, stands a better chance of adoption than have prior proposals.

Engstrom, Hyman & Silver Amicus Brief on Damages

Nora Engstrom, David Hyman & Charles Silver have filed an amicus brief in a Texas case on damages:

The brief addresses two misguided proposals that Petitioners—tort defendants in the trial court below—are pushing in a case currently before the Supreme Court of Texas.  The first proposal is to require Texas courts to consider comparison cases when reviewing the reasonableness of awards of noneconomic damages.  The brief argues that that proposal is unsound conceptually and unworkable empirically, which is why other courts that have tried the approach have quickly abandoned it.  Second, Petitioners insist that noneconomic damages should be limited to a predetermined ratio of economic damages, as is currently the case for compensatory damages and punitive damages.  The brief argues that, in addition to violating the bedrock principle that prevailing tort plaintiffs are to be made whole, this second proposal, by tethering damages for pain and suffering to lost wages, would disproportionately harm certain (low-wage-earning) accident victims, including women, children, and the elderly.  In the brief’s words:  “If Petitioners have their way, Texas’s civil justice system will systematically (but irrationally) discount the pain endured by old persons, young persons, and stay-at-home moms.”  Finally, the brief takes issue with the contention by Petitioners and their supporting amici that noneconomic damage awards in Texas have “skyrocketed.”  For starters, the brief notes that, although the insurance industry amici have proprietary data on which their business models depend, they have offered no evidence to support their empirical claim.  That silence is telling.  Moreover, after compiling and analyzing the best data that is publicly available, the brief reports that it appears that noneconomic damages aren't increasing but are, rather, in sharp decline.  

The brief is here:  Download Law Professor Amici Curiae Brief in Support of Respondents (1)

Gold & Smith on Restatements and the Common Law

Andrew Gold & Henry Smith have posted to SSRN Restatements and the Common Law.  The abstract provides:

Restatements interact with the common law in multiple ways. Restatements reflect the common law, but they also may do much more; for example, they may accelerate legal reform, and they may freeze the law in place. This chapter considers ways that Restatements can address a concern that Justice Cardozo emphasized: the need for a balance between certainty and flexibility. With that in mind, a central concern is the way that the common law operates as a complex system. The system of the common law is a hybrid of a spontaneous and a made order; it is also, potentially, a loosely connected system rather than the kind of deductive system that some formalists imagine. Taking these features into account, we argue that a key consideration in the drafting of Restatements should be the architecture of the common law, including its conceptual structure. Restatements can seek an “architectural fit,” and in doing so they can strike a workable balance between certainty and flexibility.

Robertson on Justifying Liabilities and Duties

Andrew Robertson has posted to SSRN Justifying Liabilities and Duties.  The abstract provides:

This chapter argues that a thorough consideration of the justifications for the law of obligations requires close attention to liability and duties in addition to rights. Liability provides an important frame of reference for any justificatory exercise in the law of obligations, for two reasons. The first is that, historically and as a matter of practice, the common law of obligations begins with, and focuses primarily on, liability rather than rights and duties. While it is possible, through careful study, to identify rights and duties in the common law, the common law is not imposed on us through the announcement of general rights or duties. The common law is explicated through judgments, and in private law cases those judgments mostly take the form of justifying liability or justifying the denial of liability. A focus on liability as a justificatory frame of reference reminds us of the context in which rights, duties and liabilities are identified, explicated, developed and enforced. It also reminds us of the role of the state and the interaction between the public interest, the goal of promoting social harmony and the conventional morality that underlies the law of obligations.

A second reason to consider liability as a frame of reference is that important questions of justification arise in relation to primary liabilities. Those questions will be left out of account in an analysis that focuses exclusively on rights and duties. This chapter uses the examples of equitable estoppel and the right to performance of a contractual promise to explore the difficulty that is encountered in determining the existence and significance of rights in the common law of obligations, and the difficulty that is encountered in drawing the boundary between right/duty relationships and liability/power relationships. The chapter sketches some ideas about possible justifications for two particularly controversial forms of primary liability: vicarious liability and equitable estoppel. The final part of the paper discusses the need to take account of duties in the analysis of justification in private law. The duty perspective raises the idea of behaviour guidance as a possible justification of the common law of obligations. In order to understand why private law cannot be seen as a set of ‘guidance rules’, we need to turn to the relationship between duties, rights and liability. The paper therefore concludes that a full understanding of justification can only be gained by taking account of liabilities, duties, and rights.